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  1. Make the compromise: Ending chain migration is a small price to legalize Dreamers. By Nolan Rappaport


    © Getty

    The most controversial of the four pillars in President Donald Trump’s "Framework on Immigration Reform & Border Security" is his demand for an end to chain migration.

    It would be a shame if Trump’s proposal, which offers legalization for 1.8 million Dreamers, is rejected to maintain a practice that was originally established to ensure that immigrants would continue to come mainly from white, European countries.

    “Chain migration,” is a legitimate sociological term that has been used for more than 60 years. The Routledge Handbook of Migration and Language(2017) defines it as:

    “A process where relatives who have previously migrated to a new country sponsor family to migrate to the same country. It entails a tendency by foreigners from a certain city or region to migrate to the same areas as others from their city or region.”

    Trump would make an exception for the spouses and children of American citizens and lawful permanent residents (LPRs). They are part of the citizen or LPR’s nuclear family.


    The history of chain migration.


    The 1924 Johnson-Reed Act established a quota system based on national origins. It reserved about 70 percent of the visas for immigrants from Great Britain, Ireland, and Germany.

    In 1964, President Lyndon Johnson supported a bill that would replace the national origins quota system with a preference system that would allocate 50 percent of the immigrant visas to applicants who have special occupational skills or education that would benefit America’s economic interests. The rest would be distributed to refugees and immigrants with close family ties to citizens or LPRs.


    The House Judiciary Committee Chairman, Rep. Michael Feighan (D-Ohio), mobilized bipartisan resistance to Johnson’s immigration bill. Ultimately, however, he agreed to accept Johnson’s bill if he eliminated its emphasis on merit and skills and reserved most of the visas for immigrants with family ties to citizens and LPRs (chain migration).

    Read more at http://thehill.com/opinion/immigrati...ce-to-legalize

    Published originally on The Hill.

    About the author. Nolan Rappaport was detailed to the House Judiciary Committee as an executive branch immigration law expert for three years; he subsequently served as an immigration counsel for the Subcommittee on Immigration, Border Security and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years.





  2. "Chain Migration" Was Originally Put in the 1965 Immigration Law to Please Nativists Who Wanted to Keep America White. They Were Wrong. Roger Algase

    This comment is a continuation of my January 19 ilw. com comment on the origins of the current family immigration system a/k/a "chain migration" which was once a neutral or even a scholarly term meaning extended family immigration beyond the immediate "nuclear" family. but has now become a term of animosity and opprobrium used by immigration restrictionists to refer to non-white immigrants in general.

    In my January 19 comment, I began a discussion of the paradox inherent in the fact that a provision which was originally inserted in the landmark 1965 immigration reform at the instigation of nativist Congressmen in both parties (chiefly, but not exclusively, Southern Democrats and Midwestern Republicans) in order to keep America white has had the opposite effect. See:

    "Chain Migration" and the Visa Lottery Originally Promoted White Immigration. That Changed. So Trump and the GOP Now Want to Abolish Them

    http://blogs.ilw.com/entry.php?10342

    Now, one month after my original post, the issue of extended family immigration has become even more contentious and has come under increasing scrutiny because of Donald Trump's efforts to use the issue of relief for Dreamers from the threat of deportation (which Trump himself created by cancelling DACA almost six months ago effective March 5) as a quid quo pro for his non-negotiable demand that Congress agree to abolish legal immigration beyond the nuclear family (and to eliminate the diversity visa lottery - another source of mainly non-white immigration which has been in effect for the past two decades).

    Therefore, it is instructive to look at the history of the "chain migration" provision of the 1965 law to see exactly how it became part of the law, what its purpose was, and how its nativist backers (and almost everyone else involved with this law) failed to predict what its actual effect would be.

    In this discussion, I will refer to two studies by independent experts who, as will be seen below, rely on objective facts for their conclusions and cannot be justly accused of partisanship or bias on either side. The first study is by the Migration Policy Institute, entitled:

    Fifty Years On,
    the 1965 Immigration and Nationality Act Continues to Reshape the United States (October 15, 2015)

    https://www.migrationpolicy.org/arti...-united-states

    The second study consists of an October 3, 2015 article by Tom Gjelten, an NPR policy analyst, member of the Council of Foreign Relations, and the author of a book on the 1965 immigration law. His article is entitled:

    In 1965, A Conservative Tried to Keep America White. His Plan Backfired.

    http://www.wbur.org/npr/445339838/th...mmigration-act

    To begin with, nothing could be less accurate than to think that the overall purpose of the 1965 immigration act was to institute or maintain a white supremacist immigration regime or to favor Europe over other parts of the world.

    To the contrary, the 1965 law was enacted at the instigation of liberal Democrats such as Congressman Emmanuel Celler (D-NY) and Senator Edward Kennedy (D-Mass) in order abolish the openly racist "national origins" immigration quota system of the previous 1924 law which had heavily favored immigration from the "Nordic" countries of Europe (or, to use Donald Trump's notorious January 11 phrase about his own preferred source of immigrants to America 94 years later: "countries like Norway").

    The 1924 law, as everyone who has even the slightest knowledge of US immigration history is well aware, had cut off immigration almost entirely from Asia, Africa and the Middle East, as well as heavily Jewish Eastern Europe and even more heavily Catholic Southern Europe.

    But as President Lyndon Johnson famously said when he signed the 1965 law abolishing these racially motivated quotas, America's new policy would be to ask immigrants: "What can you do for our country?" not"In what country were you born?".

    To be continued in a forthcoming post.

    Roger Algase
    Attorney at Law
    algaselex@gmail.com

    Updated 02-19-2018 at 12:56 PM by ImmigrationLawBlogs

  3. Trump Continues Assault Against "Chain Migration" Even Though His Family Came To US Same Way. Will Ending Birthright Citizenship Be Next? Roger Algase

    The news that Melania Trump's Slovenian parents are now in the United States helping to take care of Trump's son Barron has fueled speculation that they may have come to the United States with green cards sponsored by Melania, who is a US citizen but has had a controversial immigration history herself which has never been fully explained by the White House.

    This would be an exact example of the same "chain migration" which Trump is calling "horrible" (in a December 29, 2017 tweet), and making up totally fictitious stories about, such as the delusional one that a lone wolf radicalized Muslim attacker in New York who ran over and killed 8 people last Halloween had sponsored "23 relatives" to come to the US, not a single one of whom has ever been identified.

    While it is also possible that Melania Trump's parents may be in the US simply as tourists on a temporary 6-month visa, a benefit that is not always easily granted to parents of US citizens who come from outside Europe and want to visit their US children or grandchildren, the White House has also refused to release any information on this either - claiming "privacy" on behalf of the First Lady of the United States!

    See vox.com February 14:

    https://www.vox.com/2018/2/14/170121...p-parents-visa

    Whatever the immigration status of Trump's in-laws in the US may or may not be, however, one thing is clear: both Trump's own Scottish mother and his own German grandfather came to the US to join their own siblings - through "chain migration" very similar to that which Trump and his administration are now furiously lobbying to take away from millions of American citizens who may want to sponsor their own parents, simply because they come from countries whose citizens have a skin color different from that of Trump's own family members.

    (As an aside, Trump's father Fred reportedly lied about his own German ancestry and falsely claimed that he was of Swedish origin, a lie which Donald Trump reportedly perpetuated in his Art of the Deal book - according to CNN. This would show that Trump's antagonistic relationship with the truth about immigration extended even to his own ancestry.)

    https://www.cnn.com/2017/11/28/polit...age/index.html

    For more details on how Trump and his administration lobbied against and killed a bipartisan compromise Senate bill to protect Dreamers which Trump called a "catastrophe" because it did not include the huge cutbacks in family immigration and elimination of the diversity visa lottery which he demanded, see:

    http://thehill.com/homenews/senate/3...migration-bill

    Given Trump's history of saying and doing everything possible to cut back non-European legal immigration, there is no reason to think that he would stop at just eliminating large parts of family immigration and abolishing the visa lottery.

    As a candidate, Trump repeatedly spoke out against birthright citizenship for the American-born children of parents who lack immigration status, something that would deprive millions of Hispanic, Asian and black Americans of the citizenship that is guaranteed to them by the 14th amendment to the US Constitution as upheld 120 years ago by the Supreme Court in the landmark case of Wong Kim Ark (1898)

    For just one sample of Trump's 2015 comments on this issue, which echo the position of some other anti-immigrant organizations and openly white supremacist politicians such as Rep. Steve King (R-Iowa), who introduced legislation to end birthright citizenship even for US-born children of certain legal immigrants, see:

    http://www.nj.com/politics/index.ssf...th_undocu.html

    There is no indication that Trump has changed his views since then or that he has lost interest in trying to pursue this issue, which would turn the US into an officially white supremacist state similar to apartheid South Africa.

    Trump's assault on family immigration and the visa lottery could therefore be looked at as just a dress rehearsal for an even bigger battle over race as it affects both immigration and citizenship, which could very likely be coming up next.

    Roger Algase
    Attorney at Law
    algaselex@gmail.com



    Updated 02-20-2018 at 11:15 PM by ImmigrationLawBlogs

  4. Could Threats to Deport Dreamers be Trump's "McCarthy Moment", and the End of a Presidency Whose Legitimacy is in Doubt Thanks to Russia? Roger Algase

    The following comment has been updated and revised as of 9:57 pm on February 17.

    For the very latest report on how Trump and other administration officials, obsessed by the goal of ending a major avenue of non-white legal immigration during the past half century, torpedoed a bipartisan Senate bill that would not only have protected the Dreamers but even provided funding for Trump's Wall of hostility and humiliation against Mexican and other immigrants of color, see David Nakamura and Mike Debonis, writing in the February 17 Washington Post:

    Trump administration assault on bipartisan immigration plan assured its demise

    (I do not have a link - please use Google to access.)

    Trump's attempts to use "national security" as grounds for trying to stop millions of US citizens from sponsoring their close relatives from countries that are not as white as Norway are even more reprehensible in view of his total lack of interest in enacting legislation to protect American schoolchildren from gun-toting maniacs such as the deranged American mass killer who snuffed out the lives of 17 victims on Valentine's Day.

    My earlier comments follow:

    The comments below discuss various aspects of Donald Trump's so far failed attempts to use the threat of deporting up to 800,000 Dreamers as a weapon to bludgeon Congress into enacting the largest change in America's legal immigration system in the past 50 years.

    Under the changes which Trump is fighting for with every means at his disposal, millions of American citizens who are now eligible to sponsor their parents, adult children or siblings for green cards would lose this right, tearing families apart for no other reason than the fact that most of the immigrants who would be affected by this proposal come from places where people have darker skins than citizens of "countries like Norway" which Trump stated on January 11 are more desirable as countries of origin for immigrants to the US (in his opinion) than those of what he called "shithole" countries of Africa, the Caribbean and Central America.

    The following comments look back to the history of another era of falsehood and demagogy in America, namely the 1950's period when Senator Joseph McCarthy launched the same kinds of attacks against people who held liberal or left wing political views that Trump is now launching against legal immigrants of color, especially those who happen to come from parts of the world where most people are black, Hispanic or Muslim.

    However, just as McCarthy finally went too far by attacking the US Army, which quickly ended his notorious career, Donald Trump may also reach his "McCarthy moment" leading to the end of his presidency, if he tries to follow through on vaguely expressed, but still obvious, threats to round up and deport the Dreamers if Congress refuses to accept his demand for draconian cuts in legal immigration from non-white parts of the world as a quid pro quo for granting protection to the DACA recipients whom he has himself placed in jeopardy.

    The effect on Trump's presidency if he carries out the unmistakable threats he has been making to deport the Dreamers if his demands to terminate family (and diversity) visas which have enabled tens of millions of mainly non-European immigrants to immigrate to the US in the past few decades may be compounded by Robert Mueller's February 16 indictments charging massive illegal interference by Russia with the 2016 election in order to help Trump win.

    While to be sure, Mueller has not (at this point) charged that there was any collusion with the Russian efforts by Trump or any member of his staff, his indictment clearly raises additional questions about whether Trump would have won the election without this illegal Russian support. For more about this issue in Fortune, which no one can accuse of being left wing or partisan Democratic, see:

    http://fortune.com/2018/02/17/robert...meddling-hoax/

    This cannot help but raise questions about the legitimacy of Trump's presidency, which could make the reaction against him even stronger among many segments of the American public if he tries to punish the Dreamers for his failure to persuade Congress to make huge cute in legal immigration from non-white parts of the world. McCarthy, as mentioned above got into more than enough trouble when he went too far with his lies and assaults on basic decency - and no one ever questioned that he had been elected legitimately.

    For another story about how Mueller's Russia indictments are raising more doubts about the legitimacy of Trump's presidency (which in turn could affect his ability to proceed with his agenda of turning America back toward the era of whites-only immigration that was effect from 1924 to 1964), see: POLITICO:

    https://www.politico.com/story/2018/...16163?lo=ap_d1


    As useful background the following opinion on the reasons for Trump's latest assault on legal immigration from outside Europe, by Amanda Marcotte's February 16 column in Salon.com

    Trump's immigration policy in brief: Total racist shutdown

    https://www.salon.com/2018/02/16/tru...cist-shutdown/

    will put my following comments in perspective:

    For most ilw.com readers, the moment on June 9, 1954 when Joseph Welch, counsel for the United States Army, famously responded to the attempts of Senator Joseph McCarthy (R-WI) to destroy the reputations, careers and livelihoods of hundreds, if not thousands, of innocent Americans by falsely accusing them of Communist affiliations, is merely a chapter, or a paragraph, in their history books.

    For me, as a high school student, it was a moment to watch on (black and white, of course) television, either live or on the news (I do not remember which). No one who saw that moment will ever be able to forget Welch's words to the Senator who had browbeaten, bullied and humiliated so many people:

    "You have done enough. Have you no sense of decency?"

    As every student of American history knows, that was the end of McCarthy's career - now known as the "McCarthy Moment". America had put up with McCarthy's assaults and intimidation against political figures, government officials, Hollywood directors and other Americans in all walks of life, but when he attacked the US Army itself, America had had enough - McCarthy was finished.

    In the same way, beginning 61 years later, in June, 2015 when Donald Trump began his campaign for the presidency of by accusing Mexican immigrants in general of being "criminals", "rapists" and drug dealers; and soon after called for banning every Muslim in the world from entering the United States, down until today, when he is holding almost 800,000 mainly Mexican and other Hispanic young Dreamers hostage to his agenda of reversing a half century of non-white legal family immigration (which he calls by the racial code words "chain migration") under the very obvious - if not directly expressed - threat of deportation, America has put up with Trump's assault against basic decency toward non-white immigrants.

    This includes his mass deportation-related arrests and incarceration of mainly non-white non-criminal immigrants - his Muslim bans, his "Hire American" executive order based on the false assumption that primarily Asian skilled workers take away jobs from American workers; his Wall which no one else in America thinks is necessary for this country's safety and security, but which would stand as a symbol of hatred and humiliation against Hispanic and by extension other non-white immigrants; his slashing refugee admissions to the lowest point in decades; and, most recently, his attempt to destroy the legal foundations on which tens of millions of productive, law abiding, mainly Asian, Middle Eastern, Hispanic and African legal immigrants have come to America in the past few decades, by eliminating most family-based immigration and abolishing the diversity visa lottery entirely.

    Family immigration, according to these studies, has been a major component of this increase since 1965; and it is a major, though not the only, reason why nine out of ten immigrants to the US today are from outside Europe (with Asia now being the largest component) and why whites are projected to become a minority in America within the next few decades.

    For one of many demographic studies showing how our current immigration system, which Trump and his supporters are so anxious to change, is making America less white, see one dated February 8, only about a week ago as of this writing, by migrationpolicy.org

    https://www.migrationpolicy.org/arti...-united-states

    And for another recent, comprehensive analysis of the white supremacist goals underlying Trump's overall immigration policies, see, vox.com:

    The scary ideology behind Trump's immigration instincts

    https://www.vox.com/2018/1/18/168973...mp-immigration

    Trump has attacked family immigration and the diversity in the most insulting and disparaging way to the millions of legal immigrants who have used these visas - by openly calling extended family immigration "'horrible" in a December 29, 2017 tweet - despite the fact that his own mother and grandfather came to America the same way, and that his own wife has now invited her foreign born parents to join her in the US (for how long, or with what kind of visas we don't yet know).

    He has also, without the slightest justification, accused family immigration and the diversity lottery - most of whose beneficiaries are from outside Europe - of being dangerous to American security, including spreading a totally fictitious story about a (real) radicalized New York City terror attacker who had allegedly sponsored 23 relatives through "chain migration". Not a single one of those imaginary relatives has ever been identified.

    Anyone who knows the history of that era can only be reminded of the "list" that McCarthy claimed to have at the beginning of his notorious career in 1950 with the names of some 200 imaginary "Communists" in the State Department - none of whom were ever identified either.

    As I have mentioned above, up to now, Congress, most of the media and the American public have put up with these attacks on non-white immigrants - so far. But now comes the following scenario, which could be starting to play out as we speak:

    According to this scenario, because of Trump's refusal to budge on his demand for eliminating most family immigration (except for the "nuclear family") and the visa lottery, Congress is unable to pass a bill that would protect DACA recipients - whose benefits Trump himself cancelled - from deportation. For details on how Trump has so far torpedoed Congressional efforts to pass a reasonable compromise immigration bill see:

    https://www.politico.com/story/2018/...12459?lo=ap_d1

    Next, after this White House induced Congressional failure to protect the Dreamers, Trump, who while never expressly saying he will deport the Dreamers, has again and again laid down a certain deadline - March 5 - which he imposed himself - as their "last chance", then starts to deport the Dreamers - not en masse, but a few at a time as a warning of what will happen to the rest if Congress doesn't change its mind and bend its knee to his imperial demands to eliminate the above pillars of non-white legal immigration over the past few decades.

    While carrying out the deportations, which one can safely assume will be carried out with as much cruelty and family breakup as possible, complete with Dreamers being torn away from their weeping or even seriously ill American spouses or children (based on current deportation policies which Trump's ICE director has said he "enjoys" so much), in the height of cynicism, Trump protests that the Democrats have "forced" him to this result because of their unwillingness to accept his demands to eviscerate family immigration and the abolish the diversity lottery.

    It is at this point that Trump's presidency could start to unravel.

    There is a great deal of support and sympathy for the Dreamers in America - even among some of Trump's own supporters. Trump has himself, on occasions, even expressed his "Love" for the Dreamers.

    If Trump starts to deport the Dreamers out of anger or retaliation because of Congress's refusal to go along with his demand to destroy the heart of America's non-discriminatory, race-neutral, color-blind immigration system during the past half century, could that be the beginning of the end of his presidency? Will the American people turn against him and say they that they have finally had enough, just as they did with Senator Joseph McCarthy?

    If he follows through on his implied threats to start deporting the Dreamers, merely because Congress refuses or is unable to enact the draconian cuts in mainly Asian, African, Middle Eastern and Latin American legal immigration that he is demanding, Donald Trump might, just conceivably, have his McCarthy Moment.

    Could there be a time when, not only almost 800,000 million Dreamers and their American citizen family members; and millions of other Americans who are no longer able to sponsor their foreign-born parents, adult children or siblings because of Trump's obsession with keeping legal immigrants from coming to the United States unless they are from "countries like Norway"; but the American people as a whole, will say, paraphrasing Joseph Welch's famous words:

    You have done enough. Have you no sense of humanity, Mr. President?

    Roger Algase
    Attorney at Law
    algaselex@gmail.com





    Updated 02-17-2018 at 09:57 PM by ImmigrationLawBlogs

  5. Reposting It is time to try a different approach to comprehensive immigration reform. By Nolan Rappaport

    • Note: I posted this article originally on May 2, 2014, but I think it is relevant to the current debate over a DACA-fix. To my knowledge, the Dems have offered border security measures and or partial funding for a wall, but they have not agreed yet to authorize funding for the entire wall that Trump wants, which would be ideally suited to revent make it more difficult to bring children into the country illegally in the future. The Diversity Visa Program isn't an issue. The Dems have included provisions to terminate it in past legislation, such as Schumer's Gang of Eight bill, S.744, and the chain migration provision could be modified. I have suggested one way, which was to transition to a merit based system that would give a preference to aliens who have family ties to citizens or LPRs.
    • Link to original post. http://discuss.ilw.com/content.php?3...olan-Rappaport

      Senate has passed two major immigration reform bills, and a republican majority in the House of Representatives has rejected both of them. On May 25, 2006, the Senate passed the Comprehensive Immigration Reform Act of 2006, S. 2611,[i] with a vote of 62 yeas and 36 nays. Although the bill was bipartisan, it was opposed by 58% of the senate republicans. This cast doubt on the reception S. 2611 would get from the republican majority in the House. Only 23 republican senators voted for it; the other 32 republicans and four democrats voted against it.[ii] This is a record of the roll call votes on S. 2611:
    • The House republicans reacted with a series of hearings on the problems they thought S. 2611 would create. For instance, on July 27, 2006, the House Subcommittee on Immigration, Border Security, and Claims held a hearing on, “Whether the attempted implementation of the Reid-Kennedy Immigration bill will result in an administrative and national security nightmare.” Among other negative remarks in his opening statement, Subcommittee Chair John Hostettler pointed out that, “In the Reid-Kennedy bill, the Senate proposes to replace our current rational immigration process with a scheme to allow an unknown number of additional aliens who came here illegally to stay forever.”[iii]

    • On June 27, 2013, the Senate passed the Border Security, Economic Opportunity, and Immigration Modernization Act of 2013, S. 744, with 68 yeas and 32 nays. Although it was written by a bipartisan group of eight senators known as the “Gang of Eight,” it was opposed by 70% of the senate republicans. Only fourteen of the republicans voted for the bill; the other 32 voted against it.[iv] This was substantially worse than the Senate republican reaction to S. 2611 in 2006. It was a clear indication that S. 744 would not have a good reception from the republican majority in the House.
    • House Judiciary Chairman Bob Goodlatte (R-VA), made the following remarks in a press release when S. 744 was passed:
      While I congratulate the Senate for working hard to produce immigration reform legislation, I have many concerns about its bill. The bill repeats many of the same mistakes made in the 1986 immigration law, which got us into this mess in the first place. Among my many concerns, the Senate bill does not adequately address the interior enforcement of our immigration laws and allows the Executive Branch to waive many, if not most, of the bill’s requirements.[v]
      The 1986 immigration law Chairman Goodlatte was referring to is the Immigration Reform and Control Act of 1986 (IRCA), S. 1200, which established a legalization program that was used to grant lawful status to millions of undocumented aliens.[vi] IRCA was a bipartisan bill to a much greater extent than the two Senate bills discussed above. It was introduced by a republican senator, Alan K. Simpson,[vii] and signed into law by Ronald Reagan, a republican president.[viii] According to the statement President Reagan made at the signing ceremony, IRCA was --
    • The product of one of the longest and most difficult legislative undertakings of recent memory. It has truly been a bipartisan effort, with this administration and the allies of immigration reform in the Congress, of both parties, working together to accomplish these critically important reforms.[ix]
      Despite IRCA’s strong enforcement provisions, the 2.7 million people who were legalized under its provisions in the late 1980s and early 1990s were replaced entirely by a new group of undocumented aliens by the beginning of 1997.[x] The strongest provision, the employer sanctions, was not implemented, and the border was not secured. In fact, the sanctions still are not being enforced on a large-scale, nationwide basis, and the border still is not secure. In other words, the democrats got their legalization program, and the enforcement provisions the republicans expected in return have never materialized. Chairman Goodlatte addressed this and other IRCA issues at a Judiciary Committee hearing on May 22, 2013, on, “S.744 and the Immigration Reform and Control Act of 1986: Lessons learned or mistakes repeated?”[xi]

    • Notwithstanding Chairman Goodlatte’s complaints about the fact that the IRCA enforcement and border security provisions were not implemented, IRCA shows what the republicans and the democrats can achieve when they work together on comprehensive immigration reform, and the mistakes that caused the failure to implement the enforcement provisions are well understood now. They do not have to be repeated. For more of my views on this topic, see the article I wrote for LexisNexis entitled, “What is IRCA, and What Does It Have To Do with Comprehensive Immigration Reform?”[xii]

    • How was IRCA different from the Comprehensive Immigration Reform Act of 2006 and the Border Security, Economic Opportunity, and Immigration Modernization Act of 2013?

    • In an article that appeared in the Washington Post, IRCA cosponsors Representative Romano L. Mazzoli (D-KY) and Senator Simpson explain that IRCA was developed with assistance from the bipartisan Commission on Immigration Reform and unprecedented joint House-Senate hearings — not just in Washington but also all over the country. We heard from all sides and considered all points of view. We concluded that if immigration reform was to work and be fair it had to be a "three-legged stool." Leg one was intended to improve border security to prevent illegal crossings at the border with Mexico; and, to improve the effectiveness of interior enforcement of the immigration laws, we established penalties for employers who knowingly hire undocumented alien employees. Leg two was an H-2A temporary worker program for agricultural workers,[xiii] which included wage and workplace protections to prevent it from becoming another exploitative Bracero Program.[xiv] Leg three was a legalization program to permit some, but not all, of the undocumented aliens already living and working in the United States to regularize their unlawful status and begin a lengthy process to earn temporary residency and, if they chose to continue, to earn permanent residency and citizenship.[xv]

    • Summary of IRCA’s provisions.

    • Title I: Control of Illegal Immigration
      Employment. Makes it unlawful to hire, recruit, continue to employ, or refer for a fee for U.S. employment any alien knowing that such person is unauthorized to work; or to continue to employ an alien knowing of such person's unauthorized work status.
      Establishes an employment verification system. Requires the employer to attest, on a form developed by the Attorney General, that the employee's work status has been verified by examination of certain types of documentation. Requires the worker to similarly attest that he is a U.S. citizen or national, or an authorized alien.
      Limited Enforcement Use of Employment Authorization documents. The verification system or any required identification document can be used only to enforce the IRCA and 18 U.S.C. §§ 1001, 1028, 1546, and 1621.
      National Identification Card. Nothing in this Act shall be construed to authorize, directly or indirectly, the issuance or use of national identification cards.
      Preemption. The employer sanction provisions preempt any state or local law imposing civil or criminal sanctions (other than through licensing and similar laws) upon those who employ, or recruit or refer for a fee for employment, unauthorized aliens.
      Discrimination. It is an unfair immigration-related employment practice for an employer of three or more persons to discriminate against any individual (other than an unauthorized alien) with respect to hiring, recruitment, firing, or referral for fee, because of such individual's origin or citizenship status. It is not an unfair immigration-related employment practice to hire a U.S. citizen or national over an equally qualified alien.
      Essential Elements. Increased enforcement and administrative activities of the Border Patrol, the INS, and other appropriate federal agencies are essential.
      Vigorous Enforcement. Expresses the sense of the Congress that the immigration laws of the United States should be vigorously enforced, while taking care to protect the rights and safety of U.S. citizens and aliens.
      Title II: Legalization
      Undocumented Aliens Who Entered Before 1982. Temporary Resident Status.
      Provides temporary resident status for aliens who establish that they entered the United States before January 1, 1982, have resided here continuously in an unlawful status since then, and are otherwise admissible. Prohibits the legalization of persons convicted of a felony or three or more misdemeanors in the United States, or who have taken part in persecution.
      Undocumented Aliens Who Entered Before 1982. Adjustment to Permanent Resident Status. Provides for adjusting the status of temporary resident aliens to permanent residents if they apply during the one-year period beginning with the nineteenth month following the grant of temporary resident status; have established continuous residence in the United States since the grant of temporary resident status; are otherwise admissible; and have not been convicted of a felony or three or more misdemeanors committed in the United States.
      Criminal Sanctions for False Statements on Applications. Establishes criminal penalties for false statements on an application.
      Waivers. Waives numerical limitations, labor certification, and specified entry violations for legalization applicants. Permits the waiver of other grounds for exclusion (except criminal, most drug-related, and security grounds) to assure family unity or when otherwise in the national interest.
      Ineligible for Federal Financial Assistance Programs. Makes legalized aliens (other than Cuban/Haitian entrants) ineligible for federal financial assistance, Medicaid (with certain exceptions), and food stamps for five years following a grant of temporary resident status and another five years following a grant of permanent resident status (permits aid to the aged, blind, or disabled).
      Legalization for Cuban and Haitian Entrants. Establishes procedures for the adjustment to permanent resident status for certain Cuban and Haitian entrants who arrived in the United States before 1982.
      Legalization for Undocumented Aliens Who Entered Before 1972. Updates the registry provision from June 30, 1948, to January 1, 1972, to provide LPR status for qualified applicants who entered the United States before January 1, 1972.12
      Title III: Reform of Legal Immigration
      H-2A Visa (Temporary Agricultural Workers). Separates temporary agricultural labor from other temporary labor for purposes of nonimmigrant (H-2 visa) worker provisions. Requires an employer filing an H-2A visa petition to certify that there are not enough local U.S. workers for the job and that similarly employed U.S. workers' wages and working conditions will not be affected adversely. Prohibits approval of that petition if the job is open because of a strike or lockout; if the employer has violated temporary worker admissions terms; or if the employer has not made appropriate regional recruitment efforts.
      Legalization for Agricultural Workers. Establishes a special agricultural worker adjustment program. Provides permanent resident status for aliens who apply during a specified period; have performed at least ninety man-days of seasonal agricultural work during the twelve-month period ending May 1, 1986; and are admissible as immigrants.
      Waivers for Agricultural Workers. Permits waiver of exclusion grounds (except for specified grounds) for humanitarian or family purposes, or when in the national interest.
      Visa Waiver Pilot Program. Authorizes a three-year pilot visa waiver program (since expanded and made permanent).[xvi]
    • The path forward.

    • I can sympathize with the democrats who still support S. 744, but that bill was opposed by 70% of the republicans in the Senate, and the House is controlled by a republican majority that clearly has no interest in moving it through the legislative process in the House -- or in putting it on the floor directly for a vote. This situation does not offer many promising alternatives. One possibility would be to wait for a future in which the democrats have majorities in the Senate and the House and a president in the White House, but that could be a very long wait. Another is to wait for the House republicans to pass an immigration reform bill and try to persuade them to agree to a conference on the House bill and S. 744, but there is little, if any, reason to expect the House republicans to agree to such a conference. On the other hand, the House republicans probably would agree to an informal, off-the-record conference with the Senate to discuss a new bill that could meet the political needs of both parties, particularly if the Senate indicates a willingness to put S. 744 aside if the meetings are fruitful. The main challenge would be to find a way to address the republican fear of giving the democrats another legalization program in return for enforcement measures that will not materialize this time either.


      [i] The Comprehensive Immigration Reform Act of 2006, S.2611. http://thomas.loc.gov/cgi-bin/bdquery/z?d109:SN2611:
      [ii] U.S. Senate Roll Call Votes 109th Congress - 2nd Session (May 25, 2006). http://www.senate.gov/legislative/LI...n=2&vote=00157
      [iii] House Subcommittee on Immigration, Border Security, and Claims hearing on, “Whether the attempted implementation of the Reid-Kennedy Immigration bill will result in an administrative and national security nightmare” (July 27, 2006). http://www.gpo.gov/fdsys/pkg/CHRG-10...9hhrg28909.htm
      [iv] U.S. Senate Roll Call Votes 113th Congress - 1st Session (June 27, 2013).
      http://www.senate.gov/legislative/LIS/roll_call_lists/roll_call_vote_cfm.cfm?&congress=113&session=1&vote=00168#top
      [v] Chairman Goodlatte statement on passage of Senate immigration bill (June 27, 2013). http://judiciary.house.gov/index.cfm...migration-bill
      [vi] The Immigration Reform and Control Act of 1986. http://beta.congress.gov/bill/99th-c...1986+%22%5D%7D
      [vii] Senator Alan K. Simpson. http://bioguide.congress.gov/scripts...?index=s000429
      [viii] President Ronald Reagan (1981-1989). http://www.whitehouse.gov/about/presidents/ronaldreagan
      [ix] President Ronald Reagan’s Statement on Signing the Immigration Reform and Control Act of 1986 is available at http://www.presidency.ucsb.edu/ws/?pid=36699
      [x] Estimates of the Unauthorized Immigrant Population Residing in the United States: 1990 to 2000 (January 2003). http://www.dhs.gov/xlibrary/assets/s...eport_1211.pdf
      [xi] Committee on the Judiciary, Hearing on, “S.744 and the Immigration Reform and Control Act of 1986: Lessons learned or mistakes repeated?” (May 22, 2013). http://judiciary.house.gov/_cache/fi...3-30-81174.pdf
      [xii] For more information on IRCA, see Nolan Rappaport, “What is IRCA, and What Does It Have To Do with Comprehensive Immigration Reform?” (Feb. 8, 2013). http://www.lexisnexis.com/legalnewsr...on-reform.aspx
      [xiii] H-2A Temporary Agricultural Workers. http://www.uscis.gov/working-united-...ltural-workers
      [xiv] The Bracero Program. http://www.farmworkers.org/bracerop.html
      [xv] Romano L. Mazzoli and Alan K. Simpson, “Enacting Immigration Reform, Again” (Sept. 15, 2006). http://www.washingtonpost.com/wp-dyn...091401179.html
      [xvi] Taken from Congressional Research Service summary. http://beta.congress.gov/bill/99th-c...1986+%22%5D%7D
      ________________________________________________________________________
      This post originally appeared on ... Reprinted with permission.

      About The Author

      Nolan Rappaport was an immigration counsel on the House Judiciary Committee for seven years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals. He also has been a policy advisor for the DHS Office of Information Sharing and Collaboration, and he has spent time in private practice at Steptoe & Johnson. He is retired now, but he welcomes temporary and part time work.

      The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.

    Updated 02-14-2018 at 02:49 PM by ImmigrationLawBlogs

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